Notwithstanding these amendments, the process stalled, as Senegal demanded that donors assume the entire costs of the investigation and trial. Following long negotiations, the AU, donors, and Senegal reached agreement that US $11.7 were needed for this purpose.[6] On November 24, 2010, donors pledged the necessary funds, removing what had seemed to be the final obstacle to a prosecution.

[T]he mandate received by [Senegal] from the African Union provides it rather with a mission of conceiving and suggesting all proper modalities to prosecute and judge strictly within the scope of an ad hoc special procedure of an international character as is practiced in international law by all civilized nations.[7]

The Court shares the noble objectives contained in the mandate of the African Union and translating into practice the adherence of this exalted organisation to [end] impunity for violations of grave human rights violations and to protect the rights of victims.

Nevertheless, the Court highlights that the mandate of the African Union has to be implemented in accordance with international custom that has taken the practice in such situations to establish ad hoc or special jurisdictions. . . . Therefore, any other endeavour of Senegal outside such a framework would violate, on the one hand, the principle of non-retroactivity of criminal law, upheld by [international human rights instruments] and, on the other hand, would impede respect for the [stand against impunity] stipulated by the same international documents. [8]

Prohibition to Retroactively Assert Jurisdiction over International Crimes?

The assertion of such a custom is difficult to harmonize with a whole range of cases in which national courts have retroactively asserted jurisdiction over international crimes. These cases date back to Israelâs prosecution of Holocaust-planner Adolph Eichmann for international crimes that were committed before the State of Israel and its domestic criminal laws came into existence. Today, international law even points to a customary duty of states to exercise their jurisdiction over international crimes.[9]

The ECOWAS Courtâs finding of a breach of Article 15 ICCPR also seems hard to reconcile with its plain wording, which only requires that the crime in question constituted a criminal offence, under national or international law, at the time it was committed. The travaux preparatoires of this provision, as well as the savings clause contained in Article 15 (2) ICCPR, both indicate that by adding the reference to "international law," the drafters intended to prevent a person from escaping punishment for an international crime by pleading that the offense was not punishable under the national law of the state trying the person.[10] The rationale behind the prohibition of retroactive criminal laws is to put the perpetrator on notice that his or her action constitutes a crime, but this is already served if the perpetrator could have known that he or she was committing what is recognized as a crime on the international plane.

If the ICJ were to follow the legal reasoning of the ECOWAS Court, it could well find in Senegalâs favor, as Belgiumâs extradition request would be serving a prosecution in breach of Article 15 ICCPR. However, for the reasons set out above, it is likely that the ICJ will not accept this rationale. The specter of conflicting judgments relating to the same person therefore looms.

Conclusion and Outlook

The judgment has placed Senegal in the unenviable position of facing conflicting demands from the AU, the ECOWAS Court, and potentially also the ICJ.

About the Author:
Jan Arno Hessbruegge works as a legal advisor for the Office of the United Nations High Commissioner for Human Rights ("OHCHR"). The article is submitted in a personal capacity and views presented do not necessarily reflect those of OHCHR or the United Nations. The author would like to thank Chile Eboe-Osuji for his valuable comments on a draft of this article.

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